11 Jurors Consider Claims of Android Patent Infringement

Some have painted Oracle’s lawsuit against Google as mere opportunism — an effort to squeeze some money out of Android, a skyrocketing mobile operating system. But as the Google-Oracle trial reaches the end of its second phase, Oracle lead counsel Mike Jacobs is adamant that this case is about protecting the future of Java, the programming platform that Oracle acquired from Sun Microsystems in 2010.

On Tuesday, with his closing arguments in the “patent phase” of the trial — where a jury will assess Oracle’s claims that Android infringes on its Java-related patents — Jacobs said that the company recently doubled hiring in the group that oversees Java and that it must defend this growing operation from Android, which uses a new version of Java built by Google.

“How do we protect that?” he asked the jury, referring to the company’s Java business. “A variety of ways — and one is patent protection.”

Jacobs and Oracle argue that in building the Dalvik virtual machine — software that runs applications on Android — Google knowingly copied patented parts of the Java virtual machine. The two patents in question — U.S. Patents 6,061,520 and RE38,104, aka ’520 and ’104 — were acquired by Oracle when it purchased Java maker Sun Microsystems in January of 2010.

Oracle sued Google later that year, claiming both patent and copyright infringement. Earlier this month, the jury reached a partial decision on Oracle’s claims, and now, after both Oracle and Google gave their closing arguments on the patent claims, the jury is set to decide on this issue as well.

The case has been closely watched because it could go a long way towards deciding whether APIs, or application programming interfaces, are subject to copyright. But this question covers only part of Oracle’s sweeping effort to prove that Google lifted its intellectual property in building Android.

“You can tell by the level of resources given to this trial is how important this dispute is,” Jacobs said on Friday.

Photo: Jim Merithew/Wired

In the patent phase of the trial, Oracle has tried to prove not only that Google infringes on its two patents, but that the search giant did so “willfully,” meaning it was aware of the infringement. The question of willfulness is crucial in determining how much Google must pay Oracle damages.

Patent ’104 — which describes a “method and apparatus for resolving data references in generated code” — is the more important of the two patents asserted by Oracle. With this patent, Oracle’s case revolves around the term “symbolic reference” and how Dalvik uses a piece of software called a dx tool to convert Java programming code into executable software, known as .dex files.

In short, the patent details a means of compiling software code in which data is tagged with “symbolic reference” rather than its numeric memory location and the two are dynamically resolved. Oracles says that in compiling code, Dalvik uses symbolic references. Google says it does not.

Using expert witness testimony from Princeton computer science professor David August, Google tried to show that Dalvik uses “numeric references” rather than “symbolic references,” arguing that this distinction proves that Google has not infringed on Oracle’s patents.

Oracle’s Jacobs pointed to expert testimony from Stanford computer science professor John Mitchell, who argued that Android does uses symbolic references. But Google pointed out that prior to reading August’s report, Mitchell had also used the term numeric references.

Using testimony from another expert witness — University of San Francisco professor Terence Parr — Google also argued that virtual machines and the concepts of symbolic and numeric references have been around for decades. But Jacobs said these arguments were mere “distractions.”

The ’520 patent — which received far less attention during the trial — describes a “method and system for performing static initialization.” In short, it covers a way of consolidating classes of files so that virtual machines can execute less code than they otherwise would. Oracle claims that Google uses simulated execution with Dalvik, while Google says that it doesn’t simulate, that it merely parses files.

In an effort to prove willfulness, Oracle argued that two engineers working on Android — Tim Lindholm and Frank Yellin — were well aware of Sun’s patents. Lindholm worked at Sun, wrote a comprehensive guide to Java when the programming platform was first released, and won over ten patents for Sun. Yellin is the co-inventor on the ‘520 patent, which describes “method and system for performing static initialization.”

Photo: Wired

Jacobs also pointed out that Google’s official mission is to “organize the world’s information” and that this includes its own patent repository. It seems impossible, he argued, that the company was unaware of the two Sun patents when building Android.

Google maintains that Dalvik was a “clean room implementation” of the Java virtual machines, meaning it was built from scratch, without using Sun’s code. It pointed to testimony from Android boss Andy Rubin in which he said that he told his engineers not to research other patents when building Dalvik.

Oracle’s case is complicated because Java is billed as open source, meaning the source code for the platform is available to anyone. But Jacobs told the jury that platform was not set free in its entirety. “Open doesn’t mean ‘like you own it,'” he said. “It doesn’t mean ‘without restriction.'” Sun still licenses the Java platform to companies and developers.

As he did during the copyright phase of the trial, Jacobs pointed to Google emails showing that Google tried to negotiate a license with Sun but then decided to take a different path, saying they would find a way to make things work without a license.

“That amounts to clear and convincing evidence that Google acted willfully when infringing the ‘104 and ‘520 patents,” Jacobs said. “[Google] really did drive down a one-way street the wrong way. They should have been more cautious.”

On Tuesday morning, prior to the closing arguments, the proceedings were delayed as the court waited for one of the jurors to arrive. Judge Alsup has repeatedly thanked the jury for their “service to their country” during the trial, which kicked off on April 16, but when he was told that the juror was stranded on the Bay Bridge with car trouble and would not appear until the next day, he dismissed her from the case.

The trial will now proceed with 11 jurors, as there were no alternates chosen, as it typical with civil cases such as this one. By Friday afternoon, after the closing arguments, a brief rebuttal from Oracle, and official instructions from Judge William Alsup, the eleven retired for deliberations.

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